626 F. App'x 316
2d Cir.2015Background
- Wingates owned an apartment complex in Columbus, Ohio insured by Commonwealth; a fire destroyed one building and damaged another.
- The insurance Policy required insureds to submit to examinations under oath (EUO) and to provide documentation "as often as may be reasonably required," and voided coverage for concealed or misrepresented material facts.
- After the fire Wingates submitted proofs of loss and some documentation; Commonwealth requested additional records, photographs, and EUOs; Wingates refused to attend EUOs despite adjuster warnings that refusal would breach the Policy.
- Before Commonwealth completed its investigation, Wingates sued in state court; the case was removed to federal court. Commonwealth conducted extensive discovery; Wingates conducted little to none and disclosed no experts during the discovery period.
- Commonwealth moved for summary judgment; after discovery closed and months after that motion, Wingates sought to reopen discovery to disclose an expert. The district court granted summary judgment for Commonwealth and denied reopening discovery; the Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wingates' refusal to submit to EUO was a material, willful breach of the cooperation clause | Refusal was not willful because Wingates partially cooperated (provided documents, allowed site visits, filed sworn proofs of loss) | Policy required EUOs; repeated refusal, despite adjuster warnings, was willful and a material breach | Court: Willful refusal to attend EUO was a material breach as a matter of law; summary judgment for Commonwealth affirmed |
| Whether insurer repudiated the policy (which would excuse EUO refusal) | Commonwealth repudiated obligations before breach, excusing noncompliance | No distinct, unequivocal, and absolute refusal by Commonwealth to perform | Court: No evidence of repudiation; claimant not excused |
| Whether summary judgment was appropriate for Commonwealth | Wingates argued factual disputes (e.g., cooperation sufficiency) precluded summary judgment | Commonwealth argued breach of cooperation clause defeated coverage entitlement | Court: Summary judgment proper — no genuine issue of material fact on willful breach or repudiation |
| Whether district court abused discretion by denying motion to reopen discovery for expert disclosure | Late request (8 months after discovery closed; 4 months after summary judgment motion) but needed to present expert evidence | Motion was untimely; Wingates failed to conduct discovery earlier; denial within district court's discretion | Court: No abuse of discretion; denial affirmed |
Key Cases Cited
- Rosenthal v. Prudential Prop. & Cas. Co., 928 F.2d 493 (2d Cir. 1991) (willful failure to appear at EUO is material breach of cooperation clause)
- Ausch v. St. Paul Fire & Marine Ins. Co., 125 A.D.2d 43 (N.Y. App. Div. 1987) (failure to submit to EUO is an absolute defense under the policy)
- Abudayeh v. Fair Plan Ins. Co., 105 A.D.2d 764 (N.Y. App. Div. 1984) (insured's failure to submit to EUO defeats coverage claim)
- Igbara Realty Corp. v. N.Y. Prop. Ins. Underwriting Ass'n, 63 N.Y.2d 201 (N.Y. 1984) (insurer repudiation must be distinct, unequivocal, and absolute to excuse insured's cooperation)
- Varda, Inc. v. Ins. Co. of N. Am., 45 F.3d 634 (2d Cir. 1995) (standard for insurer repudiation and its effect on insured's obligations)